Motion for Determination of Good Faith Settlement (Judge Patricia Nieto)

Case Number: BC579290??? Hearing Date: January 03, 2017??? Dept: 91

The Motion by Defendant/Cross-Complainant G.B. Mannisto, Inc. (?Mannisto?) for Determination of Good Faith Settlement, filed on11/4/16 is GRANTED.

As the settlor, Mannisto is required to make an initial showing of the settlement. The burden of proof on the issue of good faith then shifts to the nonsettlor. If the motion is contested, ?declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party.? City of Grand Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261-1262.

Therefore, as the contesting party, Defendant Westfield Topanga (?Westfield?), has the burden of establishing that the settlement between Plaintiff and Mannisto ?is so far out of the ballpark? in relation to [the] factors as to be inconsistent with the equitable objectives of the statute.? Tech-Bilt Inc. v. Woodward Clyde Associates (1985) 38 Cal.3d 488, 501; Cal. Code Civ. Proc. ? 877.6(d).

Westfield argues that the crux of Plaintiff?s case is the failure to warn of the height differential between the patio edge built by Mannisto and the adjacent concrete sidewalk that was not built by Mannisto. However, Plaintiff alleges that the accident was caused when Plaintiff ?stepped down from the uneven height of the single step down leading from the patio? to the adjoining Westfield Topanga Mall sidewalk. Complaint, 1:15-22. Westfield argues that Mannisto should have addressed the failure to warn theory. Regardless of Plaintiff?s allegations or theories, it is Westfield?s burden as the party opposing the settlement to demonstrate a lack of good faith. Cal. Code Civ. Proc. ? 877.6.

Good faith is determined by the Tech-Bilt factors, which includes consideration of the settlor?s proportionate liability. Tech-Bilt at 499. All that is expected is an estimate, not a definitive conclusion. The Tech-Bilt factors are not to be rigidly applied. North County Contractor’s Assn. v. Touchstone Ins. Services, (1994) 27 Cal. App. 4th 1085, 1090.

Westfield cites Plaintiff?s deposition testimony showing that Plaintiff felt there was no warning or railing to hold onto. Opposition, Ex. A, 112:1-9. This does not infer that Mannisto?s proportionate liability is greater. As Mannisto testified, the adjacent sidewalk which was not built by Mannisto, and which was lower than the patio edge, was constructed after Mannisto had completed its work on the patio. Motion Ex. C, 31:10-12.

Westfield also argues that Mannisto failed to account for a metal nosing plate on the patio edge which was ?possibly? placed by Mannisto. Westfield claims that this factor and the alleged failure to warn results in Mannisto?s ?possible high liability.? Opp. 8:24-26.

As Westfield points out, substantial evidence of proportional liability is required. Tech-Bilt at 501. Westfield has not proffered any evidence to support its speculation of Mannisto?s ?possible high liability.? Opp. 8:24-25. By contrast, Mannisto?s deposition testimony substantially supports a potential liability of zero percent.

Moving party is ordered to give notice.